Mosher v. Murphy

121 Mass. 276, 1876 Mass. LEXIS 351

• Court: Massachusetts Supreme Judicial Court
• Decided: November 20, 1876
• Status: Published

Opinion

Colt, J.

The St. of 1875, c. 68, § 2, declares that no bond shall be given to dissolve an attachment, which does not contain a condition obliging the sureties to pay the special judgment, which by the first section is provided for, in order to meet a case of bankruptcy on the part of the defendant. Under the former statute it had been decided that the lien created by an attachment, made more than four months before proceedings in bankruptcy, was dissolved by the defendants giving bond as then required, and that the provision of the bankrupt act which preserves liens and attachments could have no application to such bond. Gen. Sts. c. 123, § 104. Braley v. Boomer, 116 Mass. 527. Carpenter v. Turrell, 100 Mass. 450. Fickett v. Durham, 119 Mass. 159. It was thus in the power of the defendant, or of his assignee in bankruptcy, of his own motion, and without the consent of the creditor, to defeat the lien by attachment, by giving bond to dissolve it. The purpose of the statute was to remedy this, so that upon the bankruptcy of the defendant a special judgment might be rendered which should be effectual to charge the sureties in the bond. All its provisions have reference to proceedings pursued by the defendant alone, without the concurrence of the creditor. The first words of the first section are, “Whenever any defendant in a civil action dissolves an attachment made in said suit, by giving bond as provided by the statutes of this Commonwealth.” And none of its provisions can be fairly construed as prohibiting the creditor from agreeing with the defendant to take a bond as a substitute for a pending attachment, and dissolve the same. Such a mode of dissolving an attachment, as well as of releasing any other lien, is good at common law, without regard to existing statute provisions, and is unaffected by them.

In the case at bar, the bond declared on is a good bond at common law. It was duly executed by the defendant, accepted by the creditor, and the attachment was thereupon voluntarily dissolved by him. The conditions of the bond are plain and intelligible. It was not given, as we have seen, in violation of the statute; contains no illegal provisions ; and was for a valid legal consideration. Holbrook v. Klenert, 113 Mass. 268. Grocers’ Bank v. Kingman, 16 Gray, 473. Bank of Brighton v. Smith, 5 Allen, 413. Sweetser v. Hay, 2 Gray, 49. Leavitt v. Lyons, 118 Mass. 470. Judgment for the plaintiff.